Section 613 of the Fair Credit Reporting Act (FCRA) requires that consumer reporting agencies (CRAs), when reporting a consumer report for employment purposes which contains public record information, which are likely have an adverse effect upon a consumer’s ability to obtain employment, must either follow strict procedures or send notice to the consumer. Both the law, and the Federal Trade Commission (FTC), are clear that CRAs can select either option and are not required to follow both 613(a)(1) and 613(a)(2). But the ridiculous amount of FCRA-related litigation has CRAs wondering…should I do both? I’m not legally required to do both, but should I have both strict procedures in place and send notice to cover all my bases from a litigation perspective? While this blog posting is not intended to offer legal advice, I am happy to discuss this broader issue with CRAs offline. For purposes of this blog, I will leave you with this nugget.
The FCRA does not define “at the time”, which is part of the notice provision of section 613(a)(1). The full section reads, “at the time such public record information is reported to the user of such consumer report, notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported;”. A recent district court opinion in the rocket docket, the 4th Circuit, provides a very generous reading of the notice provision. The case, Rodriguez v. Equifax Information Services, LLC (1:14-cv-01142) (E.D. Va., July 17, 2015), involves an employee who applied for a position with the Office of Personnel Management (OPM). Two relevant facts — the plaintiff’s security clearance was approved and he never actually received the notice. However, essentially held that Equifax Information Services had an appropriate process in place to provide notice to consumers. The process included sending notices by mail the following business day (and in some instances two business days later), after the report had been provided to OPM.
Key takeaways from the Court’s Memorandum Opinion (“Opinion”):
- The Court states that the “at the time” requirement is ambiguous (which is true) and there is “more than one reasonable interpretation of what that requirement means.” (Opinion, p. 9)
- The Court states that “Congress did not impose a ‘same time’ requirement with respect to the receipt of the notice; and in 2000, the Federal Trade Commission interpreted the ‘at the time’ requirement to permit the mailing” of such a notice. (Opinion, p. 9) This we already know and more specifically what the FTC says is, “A CRA may use first class mail or other reasonable means to notify consumers that it is providing public record information for employment purposes under subsection (a)(1).” (See, 40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report with Summary of Interpretations, p. 81).
- This takeaway is very helpful for CRAs using the notice option of section 613. The Court does not require parity with the method by which the notice is sent. Meaning, a CRA can send the notice by automated/electronic means to the employer and by mail to the consumer. The Court states that they “cannot conclude that the text of the statute requires such technological symmetry during periods of technological innovation so long as the system initiated, at the same time a report to OPM was initiated, a process that was designed to deliver notice to the consumer according to a reasonable, standard and accepted method of delivery.” (Opinion, p. 9)